Case: 09-50958 Document: 00511274674 Page: 1 Date Filed: 10/26/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 26, 2010
No. 09-50958
Conference Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
OTTONIEL CHACON-CHINCHILLA,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:09-CR-383-1
Before SMITH, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Ottoniel Chacon-Chinchilla (Chacon) appeals from his within-guidelines
range sentence of 41 months of imprisonment for illegal reentry. He argues that
the sentence imposed was substantively unreasonable for several reasons.
Because Chacon did not object to his sentence, review is for plain error only. See
United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
We have rejected Chacon’s argument that by “effectively double-counting”
the criminal history of illegal immigrants, the applicable guidelines range
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
Case: 09-50958 Document: 00511274674 Page: 2 Date Filed: 10/26/2010
No. 09-50958
overstates the risk of recidivism and danger posed by such offenders. See United
States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378
(2009). He also concedes that his contention that a sentence within a guidelines
range calculated pursuant to U.S.S.G. § 2L1.2 should not be afforded a
presumption of reasonableness is foreclosed by United States v. Mondragon-
Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009).
Chacon’s argument that his sentence should have been more lenient because his
offense was neither violent nor dangerous but rather was, essentially, an
international trespass has also been rejected by this court. See United States v.
Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006). Although he contends that the
sentence is unreasonable because it does not properly account for his history and
characteristics, the district court concluded that the sentence was appropriate
in light of all of the 18 U.S.C. § 3553(a) factors, and this court must give
deference to that conclusion. See Gall v. United States, 552 U.S. 38, 51 (2007).
Chacon fails to rebut the presumption of reasonableness afforded his within-
guidelines sentence, see United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.
2006), and much less shows plain error. See Peltier, 505 F.3d at 391-92.
AFFIRMED.
2